MEMCOR® MEMPULSETM MEMBRANE BIOREACTOR SYTEM UPGRADE
PURCHASE AGREEMENT FOR GOODS AND SERVICES
This purchase agreement for the MEMCOR® MemPulseTM Membrane Bioreactor System Upgrade is entered into by and between the City of Crescent City, a California municipal corporation (“City”), and DuPont deNemours, Inc. (“DUPONT”), a Delaware corporation.
WHEREAS, the City of Crescent City conducted a competitive procurement process in 2004 for membrane bioreactor equipment for the City’s Waste Water Treatment Plant (WWTP); and WHEREAS, US Filter Memcor NA Group (“US Filter”) was awarded the contract for the design, fabrication and installation of MemJetTM Membrane Equipment for the City’s Membrane Bioreactor System (MBR); and
WHEREAS, the contract with US Filter was for 4 tanks, 40 racks (10 racks per tank), and 1600 B10R Modules (40 modules per rack), which could handle a flow of 1.20 MGD; and WHEREAS, the contract with US Filter contained a membrane module pricing guarantee (with CPI) for 20 years; and
WHEREAS, over the years various corporate mergers and acquisitions have taken place so that now DuPont stands in the shoes of US Filter; and
WHEREAS, the B10R modules are no longer being manufactured as technology has advanced and the B10R has become obsolete; and
WHEREAS, DuPont has a more efficient and lower maintenance MBR filter system in the MemPulseTM system; and
WHEREAS, DuPont has discounted its module prices to honor the module price guarantee in the 2004 contract with US Filter; and
WHEREAS, DuPont is the sole manufacturer of the MEMCOR® MemPulseTM system; and WHEREAS, it is the opinion of staff that the MEMCOR MemPulseTM system will best serves the needs of the City’s WWTP.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree to the following terms:
1. INCORPORATION OF RECITALS. The recitals set forth above, and all defined terms set forth in such recitals and in the introductory paragraph preceding the recitals, are hereby incorporated into this Agreement as if set forth herein in full.
2. INCORPORATION OF PROPOSAL. DUPONT’S proposal identified as Proposal No. 21P1856MORR4 dated April 19, 2022 and attached hereto is hereby incorporated by this reference as though set forth in full. In the event of any discrepancy between this Agreement and the Proposal, this Agreement will control.
3. INDEPENDENT CONTRACTOR. In the performance of the services in this Agreement, DUPONT is an independent contractor and is not an agent or employee of CITY. DUPONT, its officers, employees, agents, and subcontractors, if any, have no power to bind or commit MEMCOR® MEMPULSETM MBR UPGRADE (2022) Page 2 of 6
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CITY to any decision or course of action, and must not represent to any person or business that they have such power. DUPONT has the right to exercise full control of the supervision of the services and over the employment, direction, compensation, and discharge of all persons assisting DUPONT in the performance of said service hereunder. DUPONT is solely responsible for all matters relating to the payment of its employees, including compliance with social security and income tax withholding, workers' compensation insurance, and all other regulations governing such matters.
4. NOTICE.
a. DELIVERY. Any notices or other communications to be given to either party under this Agreement must be in writing, delivered to the addresses set forth below, and will be effective, as follows:
i. by personal delivery, effective upon receipt by the addressee; ii. by facsimile, effective upon receipt by the addressee, so long as a copy is provided by certified U.S. mail, return receipt requested, postmarked the same day as the facsimile;
iii. by certified U.S. mail, return receipt requested, effective 72 hours after deposit in the mail.
IF TO CITY: IF TO DUPONT:
City of Crescent City
Attn: City Manager
377 J Street
Crescent City, CA 95531
PH: (707) 464-7483 ext. 232
FX: (707) 465-1719
b. CHANGE OF ADDRESS. Either party may change its address for notices by complying with the notice procedures in this Section.
5. BINDING AGREEMENT. This Agreement binds the successors of CITY and DUPONT in the same manner as if they were expressly named herein.
6. AMENDMENTS. Modifications or amendments to the terms of this Agreement must be in writing and executed by both parties to be valid and enforceable.
7. WAIVER. Waiver by either party of any default, breach, or condition precedent may not be construed as a waiver of any other default, breach, or condition precedent or any other right under this Agreement. The failure of either party at any time to require performance by the other party of any provision hereof will not affect in any way the right to require such performance at a later time.
8. NONDISCRIMINATION. DUPONT must comply with all federal and state antidiscrimination and civil rights laws. DUPONT must not discriminate in the conduct of the work under this Agreement against any employee, applicant for employment, or volunteer because of race, color, creed, religion, national origin, ancestry, sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions, gender identity, gender expression, age (40 and above), marital status, sexual orientation, MEMCOR® MEMPULSETM MBR UPGRADE (2022) Page 3 of 6
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denial of family and medical care leave, medical condition, genetic information, physical or mental disability (including HIV and AIDS), military or veteran status, denial of pregnancy disability leave or reasonable accommodation.
9. INSURANCE.
a. REQUIRED COVERAGE. DUPONT, at its sole cost and expense, must obtain and maintain in full force and effect throughout the entire term of this Agreement the following described insurance coverage with insurers authorized to conduct business in the State of California and with a current A.M. Best’s rating of no less than A:VII, unless otherwise approved by CITY.
POLICY TYPE MINIMUM COVERAGE LIMITS
(a) Workers' Compensation Per California Law, as applicable (b) Employer’s Liability $1,000,000 per accident for BI/Disease (c) Automobile Liability
ISO Form # CA 0001
$1,000,000 per accident for BI/PD, for all
owned, non-owned and hired vehicles
(d) Commercial General Liability
ISO Form # CG 00 01
$1,000,000 per occurrence for BI/PD,
products and completed operations,
personal and advertising injury;
$2,000,000 aggregate
(e) Professional Liability (E&O) $1,000,000 per occurrence or claim; $2,000,000 aggregate
b. ADDITIONAL INSURED STATUS. CITY, its elected and appointed officials, employees, agents and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of DUPONT including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the DUPONT’S insurance. c. PRIMARY COVERAGE. For any claims related to this Project, the DUPONT 'S insurance coverage will be primary insurance as respects CITY, its elected and appointed officials, employees, agents and volunteers. Any insurance or selfinsurance maintained by CITY, its elected and appointed officials, employees, agents or volunteers will be in excess of the DUPONT 'S insurance and will not contribute with it.
d. NOTICE OF CANCELLATION. Each insurance policy required by this Agreement must be endorsed to state that coverage may not be cancelled except after giving CITY prior written notice to CITY.
e. WAIVER OF SUBROGATION. DUPONT hereby grants CITY a waiver of any right to subrogation which any insurer of said DUPONT may acquire against CITY by MEMCOR® MEMPULSETM MBR UPGRADE (2022) Page 4 of 6
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virtue of the payment of any loss under such insurance. DUPONT agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer.
f. SELF-INSURED RETENTIONS. Self-insured retentions must be declared to and approved by CITY. CITY may require DUPONT to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language must provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or CITY.
g. CLAIMS-MADE POLICIES. If any of the required policies provide coverage on a claims-made basis, then: (a) the retroactive date must be shown and must be before the commencement of work; (b) insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work; and (c) if coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the commencement of work, then DUPONT must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the work. h. VERIFICATION OF COVERAGE. DUPONT must provide with Certificates of Insurance for all required coverages as well as Declarations and applicable Endorsement Pages prior to commencement of work. However, failure to obtain the required documents prior to the commencement of work will not operate to waive DUPONT’S obligation to provide them at any time thereafter when requested. CITY reserves the right to demand complete, certified copies of all required insurance policies, including endorsements, required by the specifications, at any time.
i. SUBCONTRACTORS. DUPONT must require and verify that all subcontractors, if any, maintain insurance meeting all of the requirements stated herein. DUPONT must endure that CITY, its elected and appointed officials, employees, agents and volunteers are additional insureds on all policies as required herein. j. LACK OF COVERAGE. In the event that any required policy is canceled prior to the completion of the Project and DUPONT does not furnish a new Certificate of Insurance prior to cancellation, CITY may obtain the required insurance and deduct the premium(s) from contract monies due to DUPONT.
10. WORKERS' COMPENSATION.
a. COVENANT TO PROVIDE. DUPONT warrants that it is aware of the provisions of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code. DUPONT further agrees that it will comply with such provisions, as applicable, before commencing the performance of the work under this Agreement.
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b. WAIVER OF SUBROGATION. DUPONT and DUPONT'S insurance company agree to waive all rights of subrogation against CITY, its elected or appointed officials, agents, and employees for losses paid under DUPONT'S workers’ compensation insurance policy which arise from the work performed by DUPONT for CITY.
11. COMPLIANCE WITH LAWS. DUPONT must comply with all applicable standards, orders or regulations applicable to the work to be performed by DUPONT, including, but not limited to all environmental laws and labor regulations.
12. INDEMNIFICATION. DUPONT agrees to indemnify, defend and save harmless CITY, its elected and appointed officers, agents, employees, and volunteers from any and all claims and losses, whatsoever, accruing or resulting to any person or other legal entity who may be injured or damaged resulting from any wrongful acts, errors and omissions, or negligence of DUPONT, its agents and employees, pertaining to the performance of this Agreement.
13. CONFLICT OF INTEREST. DUPONT must exercise reasonable care and diligence to prevent any actions or conditions which could result in a conflict with CITY’s interest.
DUPONT must immediately notify CITY of any and all violations of this Section upon becoming aware of such violation.
14. TIME OF THE ESSENCE. DUPONT understands and agrees that time is of the essence in the completion of the work and services described herein.
15. SEVERABILITY. If a court of competent jurisdiction or subsequent preemptive legislation holds or renders any of the provisions of this Agreement unenforceable or invalid, the validity and enforceability of the remaining provisions, or portions thereof, will not be affected.
16. GOVERNING LAW AND CHOICE OF FORUM. This Agreement must be administered and interpreted under California law as written by both parties. Any litigation arising from this Agreement must be brought in the Superior Court of California, in and for Del Norte County.
17. COSTS AND ATTORNEYS' FEES. If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action will be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
18. NO ASSIGNMENT. This Agreement and any amendments hereto are not assignable by DUPONT, except by operation of law, without the prior written consent of CITY.
Any attempt to voluntarily assign this Agreement without prior written consent will be legally void.
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19. INTEGRATION. This Agreement constitutes the entire agreement of the parties and supersedes and prior negotiations, agreements, understandings, representations or statements.
20. AUTHORIZATION TO EXECUTE. The signatories to this Agreement hereby represent and warrant that they have been duly authorized to legally bind and execute this Agreement on behalf of their respective parties.
Executed by the respective parties on this 2nd day of May 2022 at Crescent City, California.
CITY OF CRESCENT CITY DUPONT
By: Eric Wier, City Manager By:
Title:
ATTEST:
Robin Patch, City Clerk
APPROVED AS TO FORM:
Martha D. Rice, City Attorney